Dicamba Lawsuit

Farmers around the country are noticing damage to their crops. Leaves are getting twisted and growth is being stunted. In the most severe cases, even trees are experiencing curling and cupping of the leaves.

The culprit may be a volatile and toxic herbicide called dicamba. When the herbicide is sprayed, dicamba has the tendency to drift up into the air, killing crops in neighboring farms.

As a result of the damage caused by dicamba, farmers have started suing the makers of products containing dicamba, including Monsanto, BASF, and DuPont. Find out more about what farmers are claiming and how a lawsuit may help you get the justice you deserve.

Dicamba Herbicide Background

Dicamba was first registered as an herbicide back in 1967. It belongs to the benzoic acid family and is used on corn and other crops.

According to the Environmental Protection Agency (EPA)1, dicamba is also registered for use in residential areas and places like golf courses to combat “broadleaf weeds such as dandelions, chickweed, clover and ground ivy.”

The herbicide has been used in the United States for decades. The EPA had been historically reluctant to approve the herbicide for use on crops because of its tendency to drift off-site. Due to the nature of the chemical, crops and plants from nearby farms and areas could be affected if the wind picks up dicamba vapor.

However, in 2016, the EPA officially approved new dicamba formulations for “over-the-top” application in cotton and soybean plants. This means that the herbicide can be applied directly to growing plants. Because the herbicide is toxic to plants, the only way for it to be applied to these two types of crops is by genetically engineering them to resist dicamba.

When the dicamba chemicals are sprayed on the dicamba-resistant soybeans and cotton, it can effectively keep weeds at bay. But, when the wind picks up the herbicide and spreads it to other areas, all the non-dicamba-resistant plants can suffer.

Signs of Dicamba Damage

According to Prairie Farmer, there are four signs of dicamba damage to keep an eye out for2.

Puckered Leaves

Leaves of plants damaged by dicamba will cup or pucker usually within a week of contamination.

Delayed Symptoms

Stephanie Porter of Burrus Seed told Prairie Farmer that there could be a delayed reaction to dicamba. Farmers who suspect damage should go back as far as two weeks to find out whether nearby farmers used the herbicide.

Stunted Growth

Plants in affected areas will also show signs of stunted growth, meaning the plants will often be shorter than those in unaffected areas. This could also lead to low yield.

Widespread Damage

Farmers may suspect other problems like viruses because damage can look similar. However, viruses often infect clusters of plants whereas dicamba damages larger portions of land and can be found at the edge of fields rather than the center.

Some of the first signs of dicamba damage came in the spring of 2017 when reports started flooding agricultural offices in several states. According to The New York Times3, the acting chief of the herbicides branch of the EPA said it received 2,708 complaints by mid-October 2017 from 25 of the 34 states where dicamba use is allowed.

Farmers reported suffering significant crop damage from off-site movement of dicamba. More than 3.6 million acres of soybeans were impacted by dicamba. Some estimated that the number could be five times greater due to unreported damage. The EPA also received reports of damage to other crops, such as tomatoes, watermelon, cantaloupe, pumpkins, tobacco, and residential gardens4.

The most complaints came from Arkansas and Missouri. As a result of the damage, the two states announced a ban on dicamba during the 2017 and 2018 growing seasons.

“Since Jan. 1, 2017, the Department’s Bureau of Pesticide Control has received more than 130 pesticide drift complaints that are believed to be related to Dicamba, which has allegedly damaged thousands of acres of crops,” the Missouri Department of Agriculture said at the time5. “The decision to issue a Stop Sale, Use or Removal Order in Missouri was made with an abundance of caution and is temporary until a more permanent solution is reached.”

EPA Tries to Minimize Potential for Drift

In 2017, the EPA reached an agreement with Monsanto, BASF, and DuPont to help stop damage from off-site drift6. The three companies agreed to make changes to the product labels as well as implement policies to further reduce damage.

For example, the products were classified as restricted use, certified applicators were required to attend training for dicamba, and application was limited to times when wind speed was below 10 mph.

The EPA was monitoring the damage and complaints during the 2018 growing season to see whether the changes fixed the widespread problems. All three dicamba products were only approved for two years to allow the EPA to make changes if necessary. The registration expires at the end of the 2018 growing season.

Dicamba Lawsuits Filed Against Makers

Damage to a crop can be devastating to farmers. That’s why it’s not surprising that farmers from all over the country have filed lawsuits against Monsanto and other dicamba makers.

One of the first farmers to bring a lawsuit against Monsanto was Bill Bader. The plaintiff from Missouri alleged that he suffered $1.5 million in dicamba damages to his peach tree orchard after Monsanto rolled out its dicamba-resistant crops in 2015. Because the EPA had not approved the new formulation, Bader accused Monsanto of knowing that other farmers would grow impatient and use the old formulations that are known for off-site movements.

“Without releasing a corresponding herbicide, plaintiffs maintain, it was foreseeable that the farmers who purchased the new GE seeds would resort to using dicamba to curb the weed growth on those seeds,” the lawsuit states7.

However, Monsanto claims that the spray used by a neighboring farmer wasn’t even made by the company.

Since that initial lawsuit was filed, dozens of farmers have filed lawsuits against Monsanto, BASF, and DuPont over claims that the companies were irresponsible in their marketing and knew that the products were unsafe.

One class-action lawsuit even levies additional allegations that Monsanto and BASF engaged in anti-trust activity by forcing farmers to buy their dicamba-resistant plants to protect their crops from drift damage.

JPML Consolidates Dicamba Lawsuits into MDL

By 2018, several lawsuits accusing the three companies of similar claims prompted attorneys to file a motion to consolidate the lawsuits into a single multidistrict litigation. In February 2018, the U.S. Judicial Panel on Multidistrict Litigation (JPML) agreed to consolidate all the cases into the U.S. District Court for the Eastern District of Missouri8.

“The actions share factual questions arising from allegations concerning the development, testing, and marketing of Monsanto’s dicamba-resistant Xtend seeds and three dicamba herbicides – XtendiMax, Engenia, and FeXapan – as well as allegations of injury from the use of those herbicides, either alone or in conjunction with the Xtend seeds,” the panel wrote.

Consolidation allows larger and more complex cases to be managed by a single court to eliminate duplicate discovery and make the process more efficient.

As of May 2018, there were 15 actions pending in federal court under District Judge Stephen N. Limbaugh Jr9. However, more cases are expected to be filed.

Who is Eligible to File a Dicamba Lawsuit?

In all the cases filed so far, plaintiffs have been commercial farmers whose crop yields suffered damages as a result of dicamba herbicides from Monsanto, BASF, and DuPont or from dicamba-resistant crops.

In most cases, the damage came from the use of dicamba by neighboring farmers, but lawyers are claiming that the companies are responsible for putting unsafe herbicides on the market.

Those who suffered financial losses as a result of dicamba drift damage should consult an attorney immediately to find out how a lawsuit can help recover losses.

References

EPA. “Registration of Dicamba for Use on Genetically Engineered Crops”, United States Environmental Protection Agency, https://www.epa.gov/ingredients-used-pesticide-products/registration-dicamba-use-genetically-engineered-crops. Accessed May 30th, 2018.

Eric Lipton. “Crops in 25 States Damaged by Unintended Drift of Weed Killer”, New York Times, https://www.nytimes.com/2017/11/01/business/soybeans-pesticide.html?mtrref=undefined&gwh=B290441E3D02D531733F757DB9F2083F&gwt=pay. Accessed May 30th, 2018.

Missouri Department of Agriculture. “Missouri Department of Agriculture temporarily issues Stop Sale, Use or Removal Order on all Dicamba products in Missouri”, Missouri Department of Agriculture, https://agriculture.mo.gov/news/newsitem/uuid/c1e77acb-f9af-47ac-9700-8a633f4cb74c. Accessed May 30th, 2018.

EPA. “Registration of Dicamba for Use on Genetically Engineered Crops”, United States Environmental Protection Agency, https://www.epa.gov/ingredients-used-pesticide-products/registration-dicamba-use-genetically-engineered-crops#q2. Accessed May 30th, 2018.

”UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION”, U.S. GOVERNMENT PUBLISHING OFFICE, https://www.gpo.gov/fdsys/pkg/USCOURTS-moed-1_16-cv-00299/pdf/USCOURTS-moed-1_16-cv-00299-0.pdf. Accessed May 30th, 2018.

”UNITED STATES JUDICIAL PANEL on MULTIDISTRICT LITIGATION”, United States Judicial Panel on Multidistrict Litigation.
, http://www.jpml.uscourts.gov/sites/jpml/files/MDL-2820-Initial_Transfer-01-18.pdf. Accessed May 30th, 2018.

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Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the https://www.thejusticelawyer.com/ website (the "Service") operated by The Eichholz Law Firm, P.C. ("us", "we", or "our").

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